Workplace Safety and Insurance
Appeals Tribunal

Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning
workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the
Workplace Safety and Insurance Board.

A child protection worker appealed a decision of the Appeals Resolution Officer denying the worker entitlement for traumatic mental stress.The claim arose out of an incident on March 5, 2010. The worker was called to a hospital when a two-year old child was being taken there by ambulance due to accident drug consumption. The child's mother was already in the hospital, where she had just delivered a stillborn baby. The mother and the two-year old child were in the same room in the hospital. The worker had to assist with managing the highly-distraught mother while at the same time in fear that the two-year-old child would die from the drug overdose.Provisions for mental stress are contained in s. 13(4) and (5) of the WSIA. Decision No. 2157/09 found that these subsections did not comply with s. 15 of the Canadian Charter of Rights and Freedoms, and determined that the subsections would not be applied in that appeal.The Tribunal's jurisdiction with respect to the Charter does not include the ability to make a general declaration of constitutional invalidity. Therefore, the subsections must be applied in Tribunal decisions, unless a notice of constitutional question is served. No such notice was provided in this case.The work performed by the worker was generally stressful. Despite the stressful nature of her work, there was no indication that the worker experienced any significant psychological difficulties prior to March 5, 2010.For mental stress entitlement under s. 13(5), there must be an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment. There are two lines of approach in Tribunal decisions regarding the interpretation of s. 13(5). One focuses on the expected effect of an incident on an average worker in the work force; the other focuses on the average worker performing the same type of work as the worker. The Panel applied Decision No. 698/14, which was a recent decision on the issue, and found that the determination of whether an event is traumatic is in accordance with standards of the average worker in the general labour pool without reference to occupation, while the determination of whether an event is unexpected should take the worker's usual duties into consideration.It is routine work of child protection workers to be exposed to incidents of child neglect and abuse. However, they are not routinely exposed to children with life threatening injuries inflicted on them by others, and to deal with a mother who had just lost a newborn child while in the same room as the other child. The Panel found that the incident was an unexpected event.The Panel also found that the incident would be objectively traumatic to the average worker.The Panel concluded that the worker had entitlement for traumatic mental stress. The appeal was allowed.